Cal/OSHA Amends Forklift Labeling

The California Occupational Safety and Health Standards Board has amended the standard in title 8, California Code of Regulations, section 3650 (Industrial Trucks. General). The previous version required only certain types of powered industrial trucks (PIT) to be labeled as meeting applicable national consensus standards (NCS) design and construction requirements. As amended, the standard requires all PITs to be designed, built and maintained to applicable national consensus standards consistent with the labeling requirement.

The amendment was in response to a new requirement of the federal Occupational Safety and Health Administration (OSHA) that all new powered industrial trucks meet the design and construction requirements specified in the ANSI B56.1-1969 standard. Federal OSHA also requires that PITs bear a label or other identifying mark indicating acceptance by a nationally recognized testing laboratory.

The revision states: "Industrial trucks shall be designed, constructed and maintained in accordance with the applicable standards specified in subsections (a) and (b) of this section."

Those standards include:

• ASME B56.1-1993 for all new low-lift and high-lift trucks manufactured after June 26, 1998.

• For PITs manufactured between Sept. 1, 1991 and March 1, 1999:

• NFPA 505-1987 for powered industrial trucks

• UL 583-1984 for electric-battery- powered industrial trucks

• UL 558-1984 for internal combustion-powered industrial trucks

• ANSI/ASME B56.5-1988 for guided industrial vehicles

• ANSI/ASME B56.6-1987 for rough- terrain forklift trucks

• ASNI/ASME B56.7-1987 for industrial crane trucks

• ANSI/ASME B56.8-1988 for personnel and burden carriers

• ANSI/ASME B56.9-1987 for operator-controlled industrial tow tractors

• For PITs manufactured after March 1, 1999:

• NFPA 505-1987 for powered industrial trucks

• UL 583-1991 for electric-battery- powered industrial trucks

• UL 558-1991 for internal combustion-powered industrial trucks

• ANSI/ASME B56.5-1993 for guided industrial vehicles and automated functions of manned industrial vehicles

• ANSI/ASME B56.6-1992 for rough- terrain forklift trucks

• ASNI/ASME B56.7-1987 for industrial crane trucks

• ANSI/ASME B56.8-1993 for personnel and burden carriers

• ANSI/ASME B56.9-1992 for operator-controlled industrial tow tractors

The final order is located at: http://www.dir.ca.gov/oshsb/poweredindustrialtrucks0.html.

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Cal/OSHA Meeting to Consider Indoor Heat-Illness Regulation

California's Division of Occupational Safety and Health (DOSH) announced it will hold a public advisory meeting to open the discussion fo the need for, and possible provisions of, a regulation to address the risk of occupational heat illness in indoor workplaces in California.

The permanent heat-illness prevention regulation adopted by the Cal/OSH Standards Board in June covers only outdoor workplaces such as construction projects and agricultural operations. Its provisions include requirements for drinking water, shade access and training.

The meeting will be held in the Dept. of Industrial Relations Training Room 1304, 13^th Floor, Elihu Harris State Bldg., 1515 Clay St., Oakland, on Thursday, Oct. 26, at 10 a.m.

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ALRB Resource Materials Available

The Agricultural Labor Relations Board (ALRB) offers to the public several free educational and outreach materials on topics under related to the Agricultural Labor Relations Act (ALRA). Below is a list of materials available. Fax requests for any item to (916) 653-8750. Indicate your shipping information and the amount of each item desired. Direct questions about the materials to the ALRB Executive Secretary's office at (916) 653-3741.

• Video: Agricultural Workers' Rights Under the ALRA. This 23-minute video covers rights and responsibilities during organizing campaigns and elections. Available only on VHS tape, not DVD. Spanish or English.

• Handbook on the California Agricultural Labor Relations Act: This handbook (or "bluebook," as it is often called) is a pocket-sized booklet in Spanish and English that summarizes election procedures and unfair labor practices.

• Novela: This comic-book style information booklet explains the ALRA. The novela focuses on the ALRB's election process. Also available is a DVD that provides audio narration of the novela. The print and DVD versions of the novela are available in Spanish only.

• Brochures: These individual brochures use a question-and-answer format to review subjects such as rights and responsibilities under the ALRA (general), unfair labor practices, concerted activities, and elections. Available in Spanish or English.

• Promotional items: Key chains, cups and pens bear the ALRB logo and its toll-free telephone number.

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Terminations Without Tears

Carefully documenting and advising employees about workplace shortcomings and then conducting employment-termination discussions with tact can make dismissals less difficult for you and your employees.

The first step in dismissing a problem employee (or in correcting the problem, thus avoiding dismissal) is documenting performance deficiencies or rule violations. Keep a list of relevant incidents, providing a specific description of each event and noting the date and time it occurs.

Second, discuss the list with the employee, clearly explaining:

• What is expected of the employee;
• How the employee is not meeting those expectations;
• What the employee must do to meet them; and
• That the employee will be discharged if the employee does not meet them.

Third, give the employee a written statement that summarizes these points.

Advising a marginal employee of his deficiencies may be enough to set him on the path toward improvement. You might decide to have a follow-up discussion with an employee who has shown some but not complete improvement; a second or even third discussion might be necessary to achieve the desired result.

If, however, the employee continues to fail to meet your expectations and you conclude he probably won't, you will likely decide to discharge the employee. Following these guidelines will help ease the discharge process:

• Conduct the discharge discussion in private.
• Make the dismissal effective when the employee is told of your decision.
• Be prepared to state the reason for the discharge in terms of company policy and remind the employee about the improvement opportunities offered him.
• Have ready final pay, including any vacation pay due, plus any necessary settlement information, including data on fringe benefits.

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Violating Employee Privacy Rights Can Bring Liability

Violating employee privacy rights can result in substantial employer liability. A privacy action against an employer can arise in several contexts, from drug and alcohol testing to testing for medical problems such as AIDS to polygraph testing.

Privacy concerns also arise in the area of questions to prospective and current employees about their arrest records, credit and reference checks, information on age, sex, marital status, and other matters that may be considered private.

In addition, employers face potential exposure for violation of confidentiality when personal data about current and former employees is given to third parties.

But employers need to acquire information about job applicants and employees. They must also establish rules on employee access to information. Further, employers sometimes are asked to disclose to third parties information about an employee or a former employee.

The primary source of employee privacy protection in California is Article I, Section 1, of the California Constitution. It states:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness and privacy.

(Emphasis added.)

The California Supreme Court has held that the constitutional right to privacy may be enforced through a private right of action.

Privacy concerns have been addressed in some areas:

• California Health and Safety Code sections 199.20 and following prohibit employers from testing employees' blood for AIDS evidence without written consent, and provide that results of such tests shall not be used to determine suitability for employment.

• California Labor Code section 432.2 bans employers from requiring employees or applicants to take polygraph or lie detector tests as a condition of employment or continued employment. Employers may request employees to voluntarily submit to lie detector tests provided employees are advised in writing of their right to refuse without adverse consequences.

• California Labor Code section 98.6 authorizes the Labor Commissioner to pursue on behalf of employees claims for loss of wages due to their demotion, suspension, or discharge from employment for lawful conduct occurring during non-working hours away from the employer's premises. It also provides that an employee who is discharged or otherwise discriminated against for such conduct is entitled to reinstatement, as well as lost wages and benefits. It confers those protections beyond just current employees: Applicants refused employment due to lawful off-duty conduct are entitled to employment and reimbursement for lost wages and work benefits.

While employers must obtain information about prospective and existing employees, both federal and state laws limit the right to gather certain information.

• California Labor Code section 432.7 bars employers from asking employees or applicants about arrest records that did not result in convictions. Both federal and state employment discrimination laws prohibit employers from asking applicants and employees to reveal certain personal information that is not relevant to the job, including questions on age, religion, marital status, national origin, race, medical condition or disability (including psychiatric treatment and mental illness) unrelated to an applicant's ability to perform a job, credit history or financial status, height and weight, and political affiliation and beliefs.

• Both the Federal Fair Credit Reporting Act and the California Credit Reporting Agency Act limit an employer's right to obtain reports prepared by a consumer reporting agency about an applicant's or employee's credit worthiness, character, reputation, personal characteristics or mode of living. If employment is denied or other adverse action is taken due to such a report, the employer must so advise the employee or applicant and provide the name and address of the reporting agency.

Other areas are less certain. Employer testing for substance abuse in the workplace has not been specifically approved or disapproved by the courts, and no clear standards have been enunciated. While many employers have forged ahead with all-inclusive drug testing standards, some involving non-safety related jobs, significant privacy issues exist, and employers face potential legal actions for invasion of privacy. Legal advice in this area is recommended.

Investigation or surveillance to check on off-duty conduct of an employee also exposes an employer to significant liability for invasion of privacy. To have any chance of withstanding a legal challenge, the investigation must be for legitimate business reasons and conducted in a reasonable and unobstructive manner.

For instance, surveillance of an employee engaged in activities outside of his home to gain evidence to be used in contesting a workers' compensation claim may be permissible. But employers do run significant risks in the current legal climate by engaging in off-duty surveillance, especially if the surveillance intrudes into the employee's life or is conducted without a legitimate business purpose.

Defamation and invasion-of-privacy claims are possible against an employer who discloses information about a current or former employee to prospective employers or other third parties without the employee's permission. Information disclosed must be accurate and not include embarrassing private matters.

Employee privacy is an area of law where change is occurring rapidly and there is a shortage of defined standards. Employers must consider privacy rights of current and former employees before engaging in potentially invasive conduct. An employer engaging in such conduct should be able to justify its business needs and demonstrate it proceeded in as non-invasive a manner as possible.

To reduce liability exposure and accompanying legal defense expenses, employers should seek legal counsel on applicable laws and case decisions when establishing policies and practices for obtaining necessary information.

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Safety Committees May Be Labor Organizations

Labor Code section 6401.7 requires every California employer to establish a written Injury and Illness Prevention Program (IIPP). An IIPP must include a system for communicating with employees about safety.

Labor Code section 6401.7, subdivision (f), allows an employer- employee Safety Committee to be used to meet this duty to communicate, and it even outlines a Safety Committee's responsibilities. Section 6401.7, subdivision (g), enables Cal/OSHA to adopt procedures for nonunion employers to select employee representatives to the Safety Committee.

A related state law authorizes Cal/OSHA to require certain employers in high-hazard industries to establish labor-management Safety Committees to help control workers' compensation costs.

State and federal laws that require or encourage Safety Committees imply to employers that these committees are a good thing, even though beneficial results from them are by no means assured. And court decisions in recent cases reveal another - potentially steep - downside to Safety Committees. They strongly suggest that laws promoting Safety Committees may conflict with others that ensure employee rights to organize.

Despite the best of intentions, an employer that establishes a Safety Committee may be unwittingly creating an illegally dominated labor organization!

At what point does an employer-employee Safety Committee lose its status as a mere communication device and become a labor organization? This question was visited several times in the past year by the National Labor Relations Board (NLRB), and employers are likely to find the results confusing, if not alarming.

A group may meet the legal definition of labor organization even if it has no formal structure, elected officers, constitution, bylaws, regular meetings, initiation fees, or dues.

Following almost identical language of the National Labor Relations Act (NLRA), the California Agricultural Labor Relations Act (ALRA) states that a labor organization is any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and that exists, in whole or in part, to deal with employers about grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work for agricultural employees.

In deciding whether an entity is a labor organization, the NLRB has been considering two key standards drawn from this definition: (1) dealing with and (2) employee representation.

Dealing with is the exercise of any bilateral mechanism in which a group of employees, over time, makes proposals to management and management responds. It thus includes, for example, collective bargaining, wherein workers and managers seek to compromise on their differences and put the results into a written contract.

A pattern or practice of back-and-forth communication about proposals establishes the element of dealing; ad hoc proposals and responses, however, do not. A group existing only to brainstorm and that makes no proposals is not dealing with an employer and is therefore not a labor organization. Nor is a group that merely provides information to the employer, or one that is used in connection with a suggestion-box system.

A labor organization's second key attribute is that it is designed or perceived to be representative of non-member employees. The NLRB has found employee representation to exist when employees felt they could use the members of the Safety Committee as a liaison with management, or management regarded the views expressed by Safety Committee members as representative of non-member employees.

In one case, an employer wrote and handed out to Safety Committee members a summary of a Safety Committee meeting discussion and then encouraged them to discuss it with other employees to "benefit from their thoughts and ideas." This clearly reflected management's attitude that the Safety Committee represented the other employees.

In another case where the element of representation was found, employee members of a Safety Committee had continually tried to increase safety- incentive bonuses for the whole workforce, and they even had sent an e-mail inviting co-employees to contact the Safety Committee about any safety situation.

If a Safety Committee is a labor organization, the employer's relationship with it is constrained by law. The NLRA and ALRA prohibit employers from dominating or interfering with the formation of a labor organization or contributing financial or other support to it. They make it unlawful for an employer to create, administer, and determine the structure, function, or survival of an Labor organization.

An employer wanting to use a Safety Committee without running afoul of the NLRA or ALRA should consider the principles of recent NLRB decisions. There is no one specific thing for employers to do or not do to ensure their relationships with joint committees are lawful. The intent to intimidate employees or illegally dominate a worker organization is not necessary to the effect of actually doing so. But Safety Committees generally do not expose the employer to risk of unlawful domination if they do not deal with management, do not represent the workforce to management, or are able to exist, make decisions, and act without management control.

An employer whose Safety Committee is found to be an unlawfully dominated Labor organization may be required to disband it, and in some circumstances even to recognize a union that lost representation rights due to the Safety Committee. Also, if a Safety Committee that helped create some type of bonus package related to safety is disbanded on this basis, the employer may have to honor the terms of the plan and pay its prescribed benefits to employees anyway.

Is it likely agricultural employers in California will be found to be unlawfully dominating labor organizations they thought were merely Safety Committees? Agricultural employees are not covered by the NLRA, under which the cases cited here were decided, but the state ALRA was designed to provide agricultural workers with protections similar to those under the NLRA.

Also, the ALRA itself directs the Agricultural Labor Relations Board to follow applicable NLRA precedents, and state courts rely on administrative and judicial interpretations of the NLRA when interpreting the ALRA.

While it may not be likely, a farm employer could be charged with an unfair labor practice for illegal dominating an Safety Committee. Farmers who use Safety Committees should remember the recent cases affecting them.

(By: Valerie J. Horwitz and Howard R. Rosenberg, University of California, Agricultural Personnel Management Program)

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How To Respond When DHS Shows Up At Your Business

(Part Two of a two-part article; Part One ran in the Sept. issue of FELS Newsletter.)

To obtain a search warrant, the DHS must go before a federal judge or magistrate and show it has probable cause to believe that the employer may be engaged in such illegal activities. Typically, such probable cause can be shown through the statements of employees or farm labor contractors who have given statements to DHS about the employer's employment practices after they have been apprehended and interrogated by the agency. If DHS comes upon your property for the purpose of searching and seizing your records and documents and/or to interrogate workers in the field or in a packing or processing facility, it must provide the owner of the property or his/her supervisor or agent, a copy of the search warrant authorizing such activities. This is distinct from the routine audit of I-9 Forms discussed above, for which DHS does not need a search warrant or subpoena but must give three business days notice. In addition, DHS can serve an employer with a subpoena and request that it produce documents that may show whether it is employing illegal aliens.

While there is always a practical judgment to be made, if DHS does not present an employer with a search warrant prior to checking the work authorization documents of its employees or in searching and seizing records and computer materials from its office, the employer has the right to ask DHS to cease its activities and leave the employer's property until DHS provides the employer with a warrant. This is the type of situation in which it is prudent to assert the right to call an attorney or to seek expert advice.

What rights does an employer have with respect to property seized from its business pursuant to a search warrant? An employer has a right to obtain a copy of the search warrant from DHS. In addition, the employer may request and obtain an inventory of all property and documents taken by DHS from its property. If personnel records or other documents are taken which the employer needs to carry on its business, it can make arrangements through its attorney or otherwise to obtain copies of such documents from the DHS. The government will maintain control of the seized property until the investigation is resolved.

No. It simply means that DHS has a reasonable basis to believe the employer may be in violation of the law and it believes that it has a duty to follow up on information provided to it by informants or other sources. As a result, it is always prudent for an employer who has been served with a warrant to act, within limits discussed above, in a cooperative manner with DHS and any other law enforcement agencies that may be involved. In some cases, especially where the employer has properly completed and maintained I-9 Forms, employers are not charged with criminal or civil violations after a search of its employees and records. DHS may, however, apprehend and offer summary deportation to those employees found during a search of the agricultural property not to have been in the U.S. legally and with proper work authorization. In such cases, it is the employer's loss of a significant part of its workforce during a peak period that may cause the greatest harm.

Should an employer submit to an interview or allow its management employees to submit to an interview at the worksite during a DHS execution of a search warrant? This is always a difficult question to answer. From the standpoint of establishing a cooperative relationship with DHS, especially if an employer believes that it has made a good faith effort to comply with the law and has not knowingly hired or authorized the hiring, smuggling or harboring of illegal aliens, there is a natural inclination to answer questions posed by the DHS. On the other hand, the fact that DHS has gotten a search warrant indicates it believes that your business may be involved in criminal activity. An employer has a constitutional right not to answer questions during a criminal investigation. Moreover, while an employer cannot obstruct an investigation, it is not required to make its managers or employees speak to the law enforcement agencies once such an investigation and search is under way. Under such circumstances, it may be prudent to consult with a legal advisor and to advise any of your employees whom DHS wishes to interrogate to do the same.

What Should an Employer Do after a DHS Audit or Investigation Pursuant to a Warrant If the DHS Informs the Employer That Certain Employees Have Provided the Employer Invalid Work Authorization Documents? Once DHS obtains an employer's I-9 Forms and related documents pursuant to a routine audit or pursuant to a warrant, it will determine whether the document numbers on the I-9 Forms are valid and/or relate to the name associated with them. DHS can check such documents with its own database of DHS-issued documents and with the Social Security Administration. Unless they participate in one of the pilot telephonic and electronic verification programs, employers are neither required nor able to independently verify the validity of employment documents given them by job applicants.

After checking the validity of documents, DHS will notify the employer if some of the workers have given invalid documents. Usually, such notification is given in writing; however, there have been instances in the past where DHS has provided such information to an employer by telephone or verbally onsite.

Should an employer always request written direction from DHS indicating which workers are not work authorized? Yes. An employer should insist it be given written instruction from the DHS that certain employees have provided invalid documents. Without written confirmation, an employer faces the risk of a discrimination charge from an employee terminated as a result of incorrect information provided by DHS who is, in fact, authorized to work.8 By having a written communication from the DHS, an employer is in a more defensible position. What should an employer do once it receives written notice from the DHS that certain employees have provided invalid work authorization documents?

Once an employer receives written notice from the DHS that some of its employees have provided invalid work authorization documents, it is put in the position of having knowledge that it may be employing illegal aliens. Given that knowledge, the employer must take reasonable steps to resolve the employment status of the named employees. Failure to do so will subject the employer to charges of knowingly employing an illegal alien.

An employer should inform each employee that DHS has identified them as having provided invalid work authorization documents. The experience of many employers suggests that most employees, confronted with the allegation by DHS that they have provided invalid documents, will voluntarily leave the job and not return. The employee, nonetheless, should be offered a chance to explain any problems or to obtain documentation that further evidences their work eligibility. The employee should be given a limited period of time to produce the documentation. If an employee does follow up with additional work authorization documents, the employer should follow up with DHS to determine whether the new documentation is valid.

If DHS indicates that it is not, the employer is in a position to terminate the employee. We urge caution in this area. If employers fail to act on information provided by DHS, they face employer sanctions charges. If they act too quickly upon it without giving the employee a chance to address the problem, they face discrimination charges. There are a number of cases where the DHS has incorrectly informed employers that certain employment authorization documentation is invalid. After the workers have been terminated based on that information, the workers will sue the employer, alleging they were discriminated against on the 8 The Immigration & Nationality Act prohibits an employer from discriminating against job applicants and employees in hiring or firing based on their national origin and citizenship status 8 U.S.C. § 1324(b)(a)(1). Employers also are prohibited from requesting from job applicants and employees more or different documents than are required under the law, or from refusing to accept documents that on their face appear to be genuine. An employer who relies on oral advice from DHS that an employee's documents are invalid, when it later turns out the documents are valid, is vulnerable to a discrimination charge, since it can be argued the employer refused to accept documents that on their face appeared to be genuine. By giving the employee a chance to rectify any information provided by DHS that turns out to be wrong, an employer makes its defense against a discrimination charge stronger.

Should employers compare lists of employees with invalid work authorization document numbers provided by DHS with the names of future applicants for employment? Yes. As noted above, once DHS provides an employer with lists of individuals whose work authorization cannot be established, the employer is on notice that it may be employing illegal aliens. Once the employer confronts the individual employees with such information, and they subsequently are let go or fail to return to work, the employer's duty is not over. It is wise for employers to compare the names and employment document numbers provided by DHS on its list with the names and document numbers provided by future applicants for work. If they match, the employer should not re-hire the individuals until their work eligibility status is resolved.

There are examples in agricultural employment where, because of the rapid turnover of seasonal workers, employers who have terminated workers identified by DHS as having given invalid documents have unknowingly rehired them in a subsequent season. Because of the large number of seasonal hires and foremen involved in hiring, the office manager completing the I-9 Form may not remember that the worker reapplying was previously terminated for false documents and accept his/her documents. If the person completing the I-9 Form does not compare the DHS list of unauthorized workers and their document numbers, with the name and document numbers of each new hire, it is possible to inadvertently hire such person during the next hiring season. If an employer is subject to a follow up audit by DHS during the next season and DHS finds an individual on the list it previously provided is still employed or reemployed, it is likely it will charge the employer with knowingly hiring an illegal alien.

This situation is illustrated in a criminal case brought against an agricultural employer whose office rehired several workers previously let go as a result of a DHS audit identifying the persons as having invalid work authorization documents. While the persons changed the names on Social Security cards they offered as work eligibility documents when they reapplied to work at the farm the next year, they retained the same invalid Social Security numbers. When DHS showed up for another audit and found that the persons had been rehired, albeit with different names but the same Social Security numbers, it indicted the owner of the farm for criminal harboring of illegal aliens. The farmer stated that it checked the names on the DHS list but did not compare the Social Security numbers. DHS apparently believes the owner should have checked both the names and Social Security numbers and has concluded that the employer knowingly hired unauthorized workers and, by providing them with farm labor housing, also harbored them.

Conclusion: This article describes some of the common circumstances employers face during DHS and DOL investigations and the advice provided applies generally to those circumstances.

It is nonetheless important that employers facing an investigation contact their own counsel for advice that is tailored to their unique circumstances.

(Source: National Council of Agricultural Employers, dated April 26, 2006, by Monte B. Lake, who serves as NCAE's Washington counsel and is a partner in the Washington, D.C., law firm of McGuiness Norris & Williams, LLP. This article is intended to provide general guidance on investigations common to the agricultural workplace. The reader should recognize that every investigation has its own unique circumstances; if one uncertain about his or her rights and responsibilities should seek help from an expert or lawyer.)

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Social Security Verification Available On the Internet

Employers can verify employee names and Social Security numbers (SSNs) online. The program, Social Security Number Verification Service (SSNVS), allows employers to use the Internet to match current or former employee names and Social Security Numbers before preparing and submitting Internal Revenue Service Forms W-2.

SSNVS may not be used as part of the pre-hiring process, however. Employers may verify the names and SSNs of person only after they have been hired.

Employers have two options for using SSNVS:

1. Direct keying of up to 10 names and SSNs per session. This option is ideal to verify new hires.

2. Upload a file with up to 250,000 names and SSNs, and receive the results the next business day.

Third-party submitters, such as tax preparers, accountants, and payroll agents, can verify names and SSNs on behalf of their clients, but only for wage reporting purposes.

If a Name and SSN don't match:

• Make sure you did not make a typographical error.

• Advise the employee(s) involved to contact the local Social Security Administration (SSA) office to resolve the mismatch.

• Document all actions taken for mismatched SSNs.

To use the SSNVS program, employers must first register and obtain a personal identification number (PIN). Step-by-step instructions are posted online at http://www.socialsecurity.gov/bso/bsowelcome.htm. There is no charge to use the service.

Conclusion: An employer may use SSNVS only after it has made an offer of employment. An employer should never use SSNVS to take punitive action against an employee whose name and SSN do not match SSA's records. A mismatch neither implies that an employer or employee intentionally provided incorrect information nor says anything about an employee's immigration status.

Employers should use the system consistently and treat all employees the same. Taking any adverse action against an employee based on results obtained from the system could subject an employer to sanctions for violating anti-discrimination or employment-law.

(Source: Wayne Hersh, Berger Kahn, A Law Corporation Labor & Employment Group eAlert, 949-474-1880)

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Hiring Refusal For No License OK If Job Requires Driving

Is there any protection for an applicant who is not hired because she/he does not have a driver's license?

The answer depends on the reason the applicant does not have a driver's license and whether the position for which she/he is applying requires a license.

Obtaining and holding a job per se does not require an individual to have a driver's license unless an essential function of the job is driving.

An employee may take the bus to work, ride a bike, walk, carpool or be dropped off. Unless the employee's job requires driving during the work day, that requirement would not be a proper criterion for selection.

Potential for Unwitting Bias: If driving is not an essential job function and an applicant is not hired because she/he does not have a driver's license, the employer unknowingly may be discriminating against applicants who are unable to obtain a driver's license due to a disability or medical condition.

For example, because there is a vision test requirement associated with the driver's license, those individuals who are not able to pass the vision test would not be able to obtain a driver's license.

Other examples include individuals with leg or arm amputations who are not able to pass the driving test because they are not able to control the vehicle (i.e. steering, accelerating or braking) and individuals with narcolepsy (a disorder in which a person falls asleep uncontrollably).

Refusing to hire someone unless driving is an essential job function then would be discriminatory.

Acceptable Refusal Conditions: By the same token, an employer may refuse to hire an applicant without a driver's license if the job requires driving as an essential job function irrespective of whether the applicant is disabled.

Because driving could be shown as an essential job function, the individual without a license would not be a qualified applicant, and the employer could refuse to hire.

When Is Driving Essential? In determining whether driving is an essential job function, the employer should not look at positions that may infrequently require driving, such as dropping off mail or picking up supplies.

Rather, the employer should focus on positions that essentially require driving as a major part of the job, such as outside sales reps, construction workers, service technicians who need to drive to customer sites throughout the day, delivery drivers, bus drivers, truck drivers, couriers, etc.

Verify License and Insurance: For those job-related driving requirements, it is important for the employer to verify that the applicant has a current valid driver's license in their possession and has insurance in effect.

The employer also may want to check the individual's Department of Motor Vehicles record to determine how great a risk the employer would be taking by employing that individual to drive for the company.

(Source: California Chamber of Commerce)

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Social Security Number Not Needed To Start Employment

Contrary to popular belief, neither immigration law nor federal tax law requires a person to have a Social Security number (SSN) to be hired as an employee.

An employee is not required to present a Social Security card to prove employment eligibility; rather, Form I-9 lists the card as only one of several documents that may be proffered to show work authorization.

Nor does the Internal Revenue Code require an employee to present an SSN for tax purposes. It requires only that an application for an SSN be made within seven days of starting employment for taxable wages.

Usually, the real obstacle to starting employment is the software of a third-party payroll preparer, which cannot generate a paycheck without an SSN. Under these circumstances, if permitted by its system, the preparer can use a "dummy" SSN solely to generate a paycheck, as long as the actual SSN or other required information is provided on the information returns at the time of filing.

Further instructions may be found on the Social Security Administration's Web site at www.ssa.gov/employer/.

(Source: Immigration and Nationality Law Update, Proskauer Rose LLP, 1585 Broadway, New York, NY 10036.)

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Time-Card Data is Ultimately Employer's Responsibility

Some employers are tempted to withhold the paycheck of an employee who failed to turn in his timecard or did not accurately report his hours worked. Doing so, however, is risky.

Employer Legally Responsible: Employers generally make employees responsible for punching in and out each day or for manually completing a time card. The legal responsibility for recording all hours worked, however, lies with the employer.

This means that even if an employee failed to turn in a time card, or if the hours he reported are wrong, the employee still must be paid on the regularly scheduled payday.

If an employee fails to turn in a time card, or if the hours he reports are wrong, the employer must pay for all regularly scheduled straight-time hours and any scheduled overtime the employee worked in the pay period, unless the employer can show the employee did not work all scheduled hours.

Payment for unscheduled overtime hours may be delayed until the next pay period.

If the employer does not maintain accurate time records, the state Labor Commissioner will accept "the employee's credible testimony or other credible evidence" of hours worked. The employer then has the often-difficult burden of proving those hours were not actually worked.

Time-Card Data Requirements: Under California law, time cards must show:

• the total number of hours worked each day;

• the time each employee came in for the day and the time she/he left; and

• the times an employee began and ended each meal period, unless all employees take a meal period at the same time, such as when a manufacturing line is shut down for lunch.

Time cards do not need to show rest periods, nor is there any legal requirement that employees sign their time cards.

If an employee reports hours on a time card that she/he did not work, the employer may make corrections to the time card and pay only for hours actually worked.

Again, if challenged, the burden of proving what hours were in fact worked lies with the employer.

(Source: Ellen Savage, Labor Law Consultant, The Labor Law Helpline, California Chamber (800) 348-2262)

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